Originally from American Review of International Arbitration - ARIA

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SPILLOVERS OF EUROPEAN CONSUMER LAW:
VALIDITY OF ARBITRATION AGREEMENTS … AND BEYOND
Maud Piers∗
I. INTRODUCTION
1. Research setting. The European Union (“EU”) is traditionally expected to
refrain from directly interfering with general national procedural law. It is largely
considered the primary duty and prerogative of the member states to set up
national legal systems. This is referred to as the principle of procedural autonomy.
This principle, however, has not prevented the European Court of Justice (“ECJ”)
from developing several protective mechanisms to ensure that the national courts
adequately account for EU law.
2. European legislation on arbitration. This EU general approach to procedural
law is no different from its approach to arbitration legislation. There is hardly any
European legislation directly and comprehensively regulating domestic or
international arbitration. There have, however, been some initiatives that aim at
regulating the arbitration procedure in particular legal contexts. An important
example is the EU’s approach to consumer protection. The European Commission
has issued a recommendation explaining how an out-of-court procedure can be
conducted fairly when a consumer is involved. In this area of the law, substantive
EU regulations might have the indirect result of affecting arbitration proceedings.
This can be the case when issues to be settled by arbitration fall within the
purview of substantive EU law. Consequently, substantive European law
frequently has a larger impact on arbitration than any procedural measures so far
proposed by the EU. Section II provides a short overview of a number of EU
legislative initiatives that guarantee consumer protection and that affect the
member states’ arbitration laws and practices.
3. European case law on consumer arbitration. The European Court of Justice
played an important role in shaping consumer arbitration legislation and its
implementation in member states. The ECJ did not merely impose limits on the
subjective arbitrability of consumer law disputes. It took the application of the
consumer protection rules one step further. The ECJ through its case law on
consumer law also defined the obligations that fall under the courts’ jurisdiction
post arbitration. In two rulings on the application of Directive 93/13, the ECJ